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Court of AppealDismissedCivil Appeal No. 288 of 2002 (substitution application)

BEN SIRENGO v KWANZA LAND DISPUTES TRIBUNAL COMPRISING OF ONYANGO WAO & 4 others [2009] KECA 320 (KLR)

Court of Appeal of Kenya
4 June 2009
Philip Kiptoo TunoiP.K. Tunoi
657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a party to a Kenyan appeal dies and you don't substitute their representative within twelve months, the appeal dies — and no late substitution application can bring it back.

What this practically means

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Executive summary

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This was a single-judge application under rule 96(1) of the Court of Appeal Rules seeking to substitute Lydia Nafula Simiyu in place of the deceased 2nd respondent in Civil Appeal No. 288 of 2002, which appealed against a ruling of the High Court at Kitale (Etyang, J) dated 10th May 2002. The 2nd respondent died on 26th June 2005 and the applicant, who knew of the death, did not seek substitution within the twelve-month period prescribed by rule 96(2). He attributed the delay to the failure of the deceased's advocates to furnish him with the death certificate and grant of letters of administration, which he obtained in March 2008, filing the motion only in May 2009. Tunoi, JA held that the appeal against the deceased had abated by operation of rule 96(2) and that substitution could not revive an abated appeal, rendering the application futile. The applicant was also found indolent and guilty of laches, with an inordinate and unexplained ten-month delay after obtaining the relevant documents. The court further doubted whether the intended appeal was arguable and noted the dispute had already simmered for some fifteen years, so prolonging it would prejudice the respondents. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be allowed to substitute Lydia Nafula Simiyu in place of the deceased 2nd respondent in Civil Appeal No. 288 of 2002
  2. 2.Whether the appeal against the deceased 2nd respondent had abated under rule 96(2) of the Court of Appeal Rules
  3. 3.Whether the delay in seeking substitution was inordinate and unexplained
  4. 4.Whether the applicant's intended appeal was arguable

Key legal issues

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01

Effect of abatement under rule 96(2) on an application for substitution

Holding

Once an appeal abates for failure to substitute the deceased's legal representative within twelve months, substitution cannot revive the abated appeal and the application is an exercise in futility.

Reasoning

Rule 96(2) mandates that the legal representative of a deceased party be joined within twelve months of death. The applicant knew of the death, attended the funeral, yet took no step within the stipulated period. Having failed, the appeal against the deceased abated automatically. A substitution application made after abatement serves no purpose and cannot resurrect the appeal, which should be left to die as the rule demands.

p. 2

Legal principles established

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  • Where a party to an appeal dies and the legal representative is not joined within twelve months, the appeal abates under rule 96(2) and a later substitution application cannot revive it.

Court orders

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  1. 1.The application for substitution is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
Jurisdiction invoked
Rule 96(1) of the Court of Appeal Rules

Relief refused

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Substitution of Lydia Nafula Simiyu in place of the deceased 2nd respondent

The appeal had already abated under rule 96(2); substitution would not revive an abated appeal, and the applicant was guilty of inordinate, unexplained delay with no demonstrable arguable appeal.

p. 2

Costs

The application is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal having abated this application serves no real purpose since the substitution would not revive an abated appeal.
p. 2Abatement and futility of post-abatement substitution
The delay which is inordinate has not been explained at all.
p. 2Inordinate, unexplained delay
In the result this application fails and is accordingly dismissed with costs.
p. 2Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "BEN SIRENGO v KWANZA LAND DISPUTES TRIBUNAL COMPRISING OF ONYANGO WAO & 4 others [2009] KECA 320 (KLR)", Case Analysis (2009). Civil Appeal No. 288 of 2002 (substitution application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/320/eng@2009-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.